1. When a defendant objects to instructions, an appellate court must consider the instructions
as a whole and not isolate any one instruction. Even if erroneous in some way, instructions
are not reversible error if they properly and fairly state the law as applied to the facts of
the case and could not have reasonably misled the jury.

2. Trial courts are not required to use PIK instructions, but it is strongly recommended
because the pattern instructions were developed in order to bring accuracy, clarity, and
uniformity to jury instructions. Modifications or additions should only be made if the
particular facts of a case require it.

3. Telling a jury that another trial would be a burden on both sides is misleading, inaccurate
and confusing, and it constitutes error.

We reverse and remand for further proceedings because the district court erred when
giving the jury a "deadlocked jury instruction" disapproved by our Supreme Court. See
State v.
Salts, 288 Kan.___, Syl. ¶ 2, 200 P.3d 469 (2009).

A detailed discussion of the underlying facts is not necessary for our resolution of this
appeal.

When a defendant objects to instructions, an appellate court must consider the instructions
as a whole and not isolate any one instruction. Even if erroneous in some way, instructions are not
reversible error if they properly and fairly state the law as applied to the facts of the case and
could not have reasonably misled the jury. State v. McKissack, 283 Kan. 721, 732,
156 P.3d 1249
(2007) (citing State v. Edgar, 281 Kan. 47, 54, 127 P.3d 1016 [2006]).

The jury instruction at issue here was taken directly from PIK Crim. 3d 68.12. "Trial
courts are not required to use PIK instructions, but it is strongly recommended because the
instructions were developed in order to bring accuracy, clarity, and uniformity to jury instructions.
Modifications or additions should only be made if the particular facts of a case require it."
State v.
Hebert, 277 Kan. 61, 87, 82 P.3d 470 (2004).

At trial, this defendant objected to the giving of the deadlocked jury instruction; his
objection was effectively overruled–the deadlocked jury instruction was given. In his
appeal, the
defendant argues the deadlocked jury instruction given to the jury before it began its deliberations
was prejudicial, misleading, coercive, and asked the jury to consider matters outside the evidence
produced at trial. According to the defendant, the instruction placed undue pressure on the jury to
reach a verdict by inaccurately characterizing the criminal trial process as burdensome to both
parties. The defendant argues the jury could have found the defendant was unduly stressing the
criminal justice system by exercising his constitutional rights and that it was in the best interests of
the jury, as taxpayers, to avoid a hung jury. Finally, the defendant contends the deadlocked jury
instruction contradicted the court's first instruction, which asked the jury not to consider the
disposition of the case but rather to focus solely on reaching a verdict.

Our Supreme Court recently addressed the argument raised here by the defendant. See
Salts, 288 Kan. ___, Syl. ¶ 2. Salts challenged the language "'[a]nother trial
would be a burden on
both sides,'" taken directly from PIK Crim. 3d 68.12 and included in the deadlocked jury
instruction given at Salts' trial. Slip op. at 6. Salts argued this language was misleading and
inaccurate because another trial does not burden either party; it is the State's obligation and Salts'
right. Salts argued the language was legally incorrect because as noted in a previous jury
instruction, the jury should not consider what happens after trial. Finally, Salts argued the
disputed language prejudiced him because it appealed to the jurors' financial interests as
taxpayers.

In reaching its decision, the Salts court said:

"Salts' argument that the challenged language is misleading and inaccurate has merit.
Contrary to this
language, a second trial may be burdensome to some but not all on either side of a criminal case.
Moreover, the language is confusing. It sends conflicting signals when read alongside . . . [an]
instruction
that tells jurors not to concern themselves with what happens after they arrive at a verdict.

"We therefore hold that including the language '[a]nother trial would be a burden
on
both sides' in PIK Crim. 3d 68.12 is error." Slip op. at 7-8.

Because Salts did not object to the jury instruction at trial, the court applied a clearly
erroneous standard of review and ultimately concluded the error was not reversible because the
court was firmly convinced there was no real possibility the jury would have rendered a different
verdict if the error had not occurred. Slip op. at 8.

Here, the defendant objected to the giving of the deadlocked jury instruction.
Consequently, we must consider whether the error identified in Salts is reversible
when challenged
at trial. We must determine whether the instruction challenged here properly and fairly stated the
law as applied to the facts of the case and whether the instruction could have reasonably misled
the jury.

According to our Supreme Court, telling a jury that "'[a]nother trial would be a burden on
both sides'" is misleading, inaccurate, and confusing. Slip op. at 6, 8. Moreover, in this case the
jury actually informed the district court a hung jury was a real possibility. In fact, the jury
indicated it was deadlocked as to count II. The district court responded by recessing for the
evening. When the jury returned the next day, the jury requested the court read back certain
testimony. The jury eventually convicted the defendant of two counts of rape. Given the fact our
Supreme Court has held the deadlocked jury instruction misleading and the real possibility the jury
in this case was at least influenced by the erroneous language in the jury instruction, this
defendant's convictions must be reversed.

In light of the above discussion, we need not consider the other issues raised by the
defendant.

We reverse the defendant's convictions and remand for further proceedings.